An assortment of all things interesting (and possibly useless) in the legal profession

Friday, October 30, 2009

Explaining the Lag in Filling Federal Judgeships

The Obama administration's pace in filling the many federal court vacancies has been quite slow. As we observed back in early October, President Obama has appointed considerably fewer judges than President Bush did during his first year and--more significantly--has had much less success in the confirmation process than his predecessor. While President Bush got fifty-three nominees confirmed in his first year, only four of the twenty-four lower federal judges appointed by President Obama have been confirmed with the new year just around the corner.

What, exactly, explains this perplexing phenomenon to which mainstream media outlets are only recently starting to pay attention?
According to Professor Carl Tobias at the University of Richmond, the Senate is to blame. Members of the Senate Judiciary Committee are apparently holding up the preliminary approval of candidates needed for a floor vote before the full Senate. As he notes:

The Democratic panel majority, thus, has expedited review, but the Republican minority has delayed processing. For instance, it routinely delays committee votes for a week with no or minimal explanation.

This recently happened with four California District Court nominees, three of whom the panel then unanimously approved. And, last week, Senator Sessions held over Virginia Supreme Court Justice Barbara Keenan, even though he had praised the jurist's qualifications at her hearing two weeks earlier and despite the fact that the U.S. Court of Appeals for the Fourth Circuit, to which she was nominated, desperately needs more judges, as the court is operating with five of its 15 judgeships vacant. In fairness, yesterday, Sessions explained that Keenan's responses to some GOP written questions were inadequate, but that she promptly furnished more complete answers that were satisfactory, again lauded the jurist as a "fine nominee," and supported the panel decision to vote her out without objection.

But the problems extend beyond Judiciary Committee delays--those with Judiciary Committee approval are also being held indefinitely without the benefit of a final confirmation vote:

The committee has approved 14 federal court nominees, and the real bottleneck has been Senate floor action. . . . The unanimous consent procedure allows one senator to stop the entire body, and anonymous holds have delayed specific nominees' consideration. Reid has been reluctant to employ cloture, which forces votes, mainly because this practice wastes valuable floor time.

If Professor Tobias is correct that Senate politics is to blame, the delays in the confirmation process are likely here to stay unless the Senate stalemate draws more attention. However, the recent spate in confirmations (relatively speaking, of course) may be a sign of a speedier process on the horizon--with or without cloture.